FILED

September 23, 1998

Cecil W. Crowson

Appellate Court Clerk

WILLIAM BAUMGARDNER )

and wife, )

SUSAN BAUMGARDNER, )

)

Plaintiffs/Appellants, ) Appeal No.

) 01-A-01-9806-CV-00307

v. )

) Rutherford Circuit

ACD TRIDON NORTH AMERICA, ) No. 37471

INC., )

)

Defendant/Appellee. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, III, JUDGE

GUY R. DOTSON, JR.

102 South Maple Street

Murfreesboro, Tennessee 37130

ATTORNEY FOR PLAINTIFFS/APPELLANTS

JOHN R. RUCKER, JR.

14 Public Square North

Murfreesboro, Tennessee 37130

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

This is an appeal by plaintiff from summary judgment rendered by the

trial court in favor of the defendant in a personal injury case.

William Baumgardner and wife Susan Baumgardner are husband and

wife plaintiffs in the case. ACD Tridon North America, Inc. is the defendant.

William Baumgardner was, at the time of the accident in this case, a

long time employee and route driver for UPS. His delivery route was in Smyrna,

Tennessee and involved driving 80 to 100 miles a day and making 95 to 120

stops per day. He also averaged about 15 pickups per day. Among the

customers on his route for many years was the defendant Tridon. He had been

making pickups at Tridon for four or five years prior to the date of the accident

in question.

The plaintiffs' complaint asserts:

4. At all times mentioned herein, Plaintiff,

WILLIAM BAUMGARDNER was employed by United

Parcel Service as a package deliveryman and duties included

picking up and delivering packages to Defendant.

5. On November 6, 1995, Plaintiff, WILLIAM

BAUMGARDNERwas picking up packages fromDefendant

as a business invitee by using Defendant's self propelled

hand jack up and down defendant's ramp.

6. On the above date as Plaintiff, WILLIAM

BAUMGARDNER was travel[l]ing down defendant's ramp

with Defendant's self propelled hand jack, Plaintiff,

WILLIAM BAUMGARDNER lost control of the hand jack,

was knocked of[f] balance and did fall causing personal

injury.

7. It was the duty of the Defendant to design, build,

keep and maintain the above described ramp in a condition

reasonably safe for its intended uses and free from all defects

and conditions which would render it dangerous and unsafe

for Plaintiff, WILLIAM BAUMGARDNER, or present an

unreasonable risk of harm to him in his lawful use of the

ramp.
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8. It was the duty of the Defendant to instruct

Plaintiff, WILLIAM BAUMGARDNER, on the proper use

of the self propelled hand jack.

9. Defendant was negligent in that they failed to

perform the above described duties and as a proximate result

thereof, Plaintiff, WILLIAM BAUMGARDNER was

knocked off balance and fell and was injured. 

The Law

The Tennessee Supreme Court has said:

It is axiomatic that three elements are necessary for the

existence of a cause of action for negligence; (1) a duty of

care owed by the defendant to the plaintiff; (2) a breach of

that duty by the defendant; and (3) an injury to the plaintiff

which was proximately caused by the defendant's breach of

a duty.

Lindsay v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985).

No claim for negligence can succeed in the absence of: 1) duty, 2)

breach of that duty, 3) injury or loss, 4) causation in fact, and 5) promixate cause.

McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991); Bradshaw v. Daniel, 854

S.W.2d 865 (Tenn. 1993).

In the context of a negligence action against a landowner, the summary

by Justice Henry two decades ago remains essentially viable.

[1,2] Owners and occupiers of land have an obligation

to exercise ordinary care and diligence in maintaining their

premises in a safe condition for invitees. Paradiso v. Kroger

Co., 499 S.W.2d 78 (Tenn.App.1973). Proprietors are under

an affirmative duty to protect invitees, among them business

visitors, not only against dangers of which they know but

also against those which with reasonable care they might

discover. Illinois Central Railroad Co. v. Nichols, 173 Tenn.

602, 118 S.W.2d 213 (1937).

McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980).
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The duty of the defendant being thus settled, the next inquiry is as to

whether or not there is any evidence in the record to establish a breach of that

duty by the defendant.

Summary judgment having been granted in the trial court to the

defendant, this court, on appeal, must take the strongest legitimate view of the

evidence in favor of the appellant (Downen v. AllState Ins. Co., 811 S.W.2d 523

(Tenn. 1991)), and if reasonable minds might differ or there is uncertainty as to

whether or not reasonable minds might differ as to material facts (Evco Corp. v.

Ross, 528 S.W.2d 20, 25 (Tenn. 1975)), the court must then go further and apply

the same standards to the issues of injury, cause in fact, and proximate cause. If

reasonable minds could differ on all of these elements, then a grant of summary

judgment is improper and the case must be remanded for trial on the merits.

In 1986, the United States Supreme Court decided Anderson, Celotex,

and Matsushita, otherwise known as the "1986 Trilogy".

Seven years later, after a number of intermediate Tennessee Appellate

Court decisions had pointed the way, the Tennessee Supreme Court essentially

adopted the "1986 Trilogy". Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

Justice Brennan, dissenting on other grounds inCelotex but confirming

the majority on the treatment of summary judgment correctly observed:

Where the moving party adopts this second option and

seeks summary judgment on the ground that the nonmoving

party--who will bear the burden of persuasion at trial--has no

evidence, the mechanics of discharging Rule 56's burden of

production are somewhat trickier. Plainly, a conclusory

assertion that the nonmoving party has no evidence is

insufficient. See ante, at 328. 911 Ed 2d, at 277 (White, J.,

concurring). Such a 'burden' of production is no burden at all

and would simply permit summary judgment procedure to be

converted into a tool for harassment. See Louis 750-751.

Rather, as the Court confirms, a party who moves for

summary judgment procedure on the ground that the

nonmoving party has no evidence must affirmatively show

the absence of evidence in the record. Ante. At 323, 911 Ed

2d, at 273. This may require the moving party to depose the

nonmoving party's witnesses or to establish the inadequacy
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of inadequacy of documentary evidence. If there is literally

no evidence in the record, the moving party may demonstrate

this by reviewing for the court the admissions,

interrogatories, and other exchanges between the parties that

are in the record. Either way, however, the moving party

must affirmatively demonstrate that there is no evidence in

the record to support a judgment for the nonmoving party.

Celotex v. Catrett, 91 L.Ed.2d 265, 279.

Breach of Duty

The record before the court on summary judgment consists of the

summary judgment motion and the depositions of William Baumgardner and

Gary White, an employee of the defendant.

While credibility of witnesses is not an issue before this court, it is well

to take note of the candor and forthrightness of the plaintiff William

Baumgardner. Plaintiff, in his complaint, first asserts a duty of the defendant to

design, build, keep and maintain the ramp in the condition reasonably safe for its

intended uses and free from all defects and conditions which would render it

dangerous and unsafe for the plaintiff or present an unreasonable risk to him in

his lawful use of the ramp. 

This assertion is a correct statement of the duty of the defendant and

plaintiff then asserts a breach of that duty by the defendant.

Plaintiff offers no evidence at all as to any defective, dangerous, or

unsafe condition of the ramp. He testifies:

Q. Describe this ramp that you used to load your truck or to

drive the hand jack down so you could load your truck.

A. I don't know what degree the ramp is. It's a concrete

ramp. I guess it's approximately forty feet long.

Q. Is it a steep slope?

A. I don't know, sir. I'm not an engineer. I couldn't tell you.

Q. Just from a layman's standpoint, from your observations

and the numerous times that you've used it, did you consider it to be

steep?

A. Gosh, I don't know. I guess it's fairly steep.

Q. Was it so steep that you considered it to be dangerously

steep?
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A. No, sir.

Q. It's made of concrete, is it not?

A. I believe so.

Q. Does it have any safety features on it?

A. Not that I'm aware of.

Q. Is it just a flat ramp?

A. I believe it's primarily a flat ramp. It may have a curb of

so many inches on each side.

Q. Does it, in fact, have curbs on each side?

A. I believe maybe -- two or three inches maybe.

Q. What was the condition of the ramp on the night that you

were using it as far as its surface condition?

A. Other than being wet, I don't recall. It may have had

gravel where the tow motors have come from the parking lot up the

ramp.

Q. It was raining that night, was it not?

A. Yes, sir.

Q. So the ramp was wet?

A. Yes, sir.

Q. You knew the ramp was wet when you were using it. Is

that true?

A. Yes, sir.

Q. Do you recall whether the ramp had any gravel on it or

not?

A. I don't recall.

Q. Do you recall whether the ramp had any cracks in it?

A. I don't recall that.

Q. Do you ever recall seeing any cracks in the ramp?

A. No.

Q. Did the ramp have any mud on it since it was raining?

A. Not that I was aware of.

Q. Right at the end of the ramp, what is at the end of the

ramp as it goes out into the parking lot?

A. A gravelled parking lot.

Q. Is it -- is there any grass or mud or dirt nearby the end of

the ramp?

A. Yes, sir.

Q. Where is that located?

A. It's just off to the side there. Off to the side of the

gravelled parking lot it's a grassy area.

Q. If you're walking down the ramp, to your left would be

the dock door; is that correct?

A. Correct.

Q. And what is to your right?

A. The grassy area.

Q. As you get down to the end of the ramp near the grassy

area, is that worn out from where people have driven tow motors and

other pieces of equipment there?

A. It's just a gravelled lot.

Q. Was there mud or rocks at the end of that ramp that

night?

A. There were rocks. I don't -- I couldn't tell you about mud.

Q. Did you back your truck up to the end of the ramp?

A. Yes, sir.

Q. How close was your truck to the end of the ramp?

A. It was probably fifteen, twenty feet from the ramp in the

parking area.

Q. Would you drive the hand jack all the way to your truck

or would your drive it to the end of the ramp and then carry the boxes
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from the end of the ramp to your truck?

A. I would leave enough space there where the pallet jack or

the skid of package could sit close to the back of the truck.

Q. On this particular night, since it was raining, did you

drive the pallet of boxes down to the end of the ramp, leave them there

and then drive the hand jack back up the ramp?

A. I took the first skid of packages down, loaded those onto

my truck and then brought the empty skid back up the ramp and went

to get the second skid.

Q. While you were loading the boxes off the skid, did you

l eave the hand jack in the rain or did you drive it back up?

A. It was in the rain. It was still sitting there.

Q. Was it dark by the time you got to Tridon?

A. Yes, sir.

Q. Are there any lights out there?

A. There are outside lights.

Q. Are there any lights in the ramp area?

A. Not that I recall.

Q. Was it well lit enough to where you could see what you

were doing?

A. Just pretty much from the light coming out of the

warehouse area where the door is, where the door was open.

Q. You don't recall any outside lights?

A. Not in that area.

Q. Was it your responsibility to load your own truck?

A. Yes, sir.

Q. Had you ever used that ramp on other occasions when it

had been raining?

A. I don't recall any specific time, but I'm sure there is a

possibility.

Q. On the night of the accident, did you consider the ramp

to be slick since it was wet?

A. No, sir.

Q. On any other occasions that you might have used the

ramp in the rain, did you ever find it to be slick?

A. No, sir.

Q. To your recollection, was there anything wrong with the

ramp that night that contributed to your accident?

A. Not that I'm aware of.

Q. On the night of the accident, were you aware that rain

would make a concrete ramp slick?

A. I'm aware of that, but I believe that ramp is grooved or it's

a rough type surface where you can avoid that.

Q. Do you think the rain played any part in your accident at

all?

A. I'm not aware. If it did, you know, it could have been a

contributing factor, but I wouldn't say that that was the sole cause of the

accident.

Q. But the ramp itself was either grooved or rough such that

the rain wouldn't make it any more slick than it would be ordinarily. Is

that true?

A. I believe so.

Q. To your knowledge, during all the times that you used

that ramp, was there ever an occasion that it was not in good condition,

properly maintained?

A. Just other than having gravel scattered on it. That's about

it.

Q. Would the gravel be scattered down at the bottom where

the parking lot is?
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A. No, just the entire length of it. I guess the tow motors

coming and going out of the gravelled parking lot would probably bring

some up with them.

Q. On this particular night, you don't recall there being any

gravel on the ramp, though?

A. No, I don't recall.

This very candid testimony by the plaintiff not only fails to provide

material evidence of a breach of duty as to the condition and maintenance of the

ramp, but further fails to establish that the ramp had any causal connection at all

to his fall and resulting injuries. Indeed, his testimony shows affirmatively that

he has no evidence to support his claim of premises liability.

His second assertion of duty is that the defendant had a duty to instruct

him in the use of the self propelled hand jack and failed to do so.

Assuming such a duty to exist, which is a doubtful assumption, there

is simply no evidence in the record that the alleged failure to train had anything

to do with the accident in issue. Plaintiff had been using the same battery

powered, self propelled hand jack for four to five years prior to the occurrence

of this accident.

Plaintiff testified:

Q. When your accident happened, were you walking down

the ramp with the jack with the skid of boxes on it?

A. Yes, sir.

Q. And was the jack in front of you and you were walking

behind it?

A. Yes, sir.

Q. Was that the same -- were you doing the same thing you

had done on many other occasions?

A. Yes, sir.

Q. Was there anything different about this particular night

than what you had done on any other occasion?

A. No, sir.

Q. What happened to cause the jack to get away from you?

A. I don't know, sir, if there was too much weight on the

skid. I don't know, you know, if it just got haywire with me there. I just

lost control of it and it just pretty much jerked out of my hand there. I

couldn't control it.

Q. Again, looking at the Complaint you have filed in this

case, it stated that you were traveling down the ramp with a selfpropelled hand jack and plaintiff, William Baumgardner, lost control of

the hand jack, was knocked off balance and did fall, causing personal

injury. Is that a pretty good description of what took place?

A. Yes, sir.
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Q. All right. When you lost control of the hand jack, did you

let go of the handle so that it would pop up and stop the jack?

A. Like I said, that happened so fast, I don't really recall.

That may have been the case.

Q. Did the hand jack at any time run over you?

A. It may have. Like I say, it happened so quick. The next

thing I knew, I was trying to stand up.

Q. If the jack is in front of you and you're walking behind it,

how could it run over you?

A. The lever that comes back that I was holding onto with

the controls on it, unless that thing could have swing, you know, and I

went into it, I don't know really. It's a mystery to me.

Q. Did you fall on the ramp?

A. Yes.

Q. When you fell, did you let go of the handle of the hand

jack?

A. Yes. All I remember, after it happened, I was on my back

and I was trying to get up. So I'm sure at some point I did have to let go

of it.

. . . 

Q. Mr. Baumgardner, were you in a hurry as you were

coming down the ramp with this particular load?

A. No, sir.

Q. Are you certain that you were behind the jack at the time

the accident happened?

A. Yes, sir.

Q. I may have asked you this before, but I just want to be

sure. Can you offer any explanation as to what happened to cause this

load to do different than all the rest of them you had taken down that

ramp?

A. I don't know, sir. I wouldn't have expected it to.

Q. Was it a particularly big load?

A. Just a normal-sized load, just an optimal size load for a

skid there.

Q. As you were going down the ramp, was it actually raining

at that time or had it been raining and was sprinkling or misting? What

was the condition of the rain?

A. I believe it was sprinkling at the time.

Q. Do you know of anything about the ramp or about the

hand jack that caused you to lose control of the hand jack on that

particular occasion?

A. No, sir.

Q. Was there anybody other than you who had total control

of that hand jack?

A. No, sir.

There is no material evidence in the record establishing proximate

cause even if we assume a duty to train and a breach by the defendant of that

duty.

Finally, in summary plaintiff testified:
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Q. In the lawsuit that you filed against Tridon, you have

alleged that they were in some way negligent or did something wrong

to cause this accident. And what I would like for you to tell me just in

your own words is what you feel Tridon did wrong or negligently to

cause this accident.

A. Well, I would say I was never officially trained to use

their equipment. Maybe the maintenance of the ramp possibly could

have something to do with it. That's -- I guess that's the -- that's the

main thing that I can think of right off at this time. That's --

Q. All right. You have mentioned that possibly the

maintenance of the ramp may have had something to do with it. Was

there anything about the ramp that you noticed that night that was a

failure on their part to maintain that ramp?

A. Nothing that I noticed. Like I said, there could have been

debris on the ramp that I wasn't aware of.

Viewing this case in the light most favorable to the non-moving

plaintiff, this court presents only the fact that an injury has occurred. It is long

settled in Tennessee that the mere fact than an injury has been sustained never

raises a presumption of negligence. Mullins v. Seaboard Coastline Railway Co.,

517 S.W.2d 198, 201 (Tenn. App. 1974). The testimony of plaintiff shows that

he has no evidence to sustain his action for non-instruction.

Conclusion

In this unfortunate accident, plaintiff has the burden of proving the

elements of his cause of action. To survive summary judgment he must at least

offer evidence upon which reasonable minds could differ. As to the ramp on

which he fell, he has offered no evidence of a breach of duty by the defendants.

As to the alleged failure to train in the use of the battery powered hand jack, even

if one assumes a duty and a breach thereof, the record is devoid of any evidence

under which reasonable minds could find proximate cause.

The judgment of the trial court in granting summary judgment for the

defendant is affirmed.

________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

______________________________________

HENRY F. TODD, PRESIDING JUDGE, M.S.
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______________________________________

BEN H. CANTRELL, JUDGE